Get Paid for Getting Dressed? Supreme Court Clarifies “Changing Clothes” Under the FLSA

Updating a case we discussed last month, in Sandifer v. United States Steel Corp., No. 12-417 (January 27, 2014), the United States Supreme Court last week clarified the scope of Section 203(o) of the FLSA concerning which donning and doffing activities employers and employees can bargain to exclude from compensable time in collective bargaining agreements. In the process, the high Court also unanimously agreed upon which activities constitute “changing clothes” in regards to Section 203(o).

Although the FLSA generally requires employers to pay employees for time spent changing into required clothing on a worksite, Section 203(o) allows employers and employees to designate time spent changing clothes or washing at the beginning or end of a workday as non-compensable time if done so in a bona fide collective bargaining agreement. Over the past year, numerous employers have faced lawsuits claiming that time employees spent donning and doffing protective gear should be compensated since the gear should not be considered “clothing.” Many of these disputes centered on the definition of “clothing” under Section 203(o), as donning and doffing of items not considered “clothes” had to be compensated regardless of the existence of a CBA.

In Sandifer, steelworkers sued their employer, seeking compensation for time spent donning and doffing protective gear required for their hazardous jobs in the company’s steel plants. Specifically, the steelworkers identified twelve of the most common kinds of protective gear required: flame-retardant jacket, pair of pants and hood; a hardhat; a “snood”; “wristlets”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator. The employees claimed that because these pieces of protective gear were not clothes, they deserved regular pay for the time they spent donning and doffing the protective gear. The district court granted the employer summary judgment, holding that the petitioner’s donning and doffing constituted “changing clothes” under Section 203(o) and was therefore properly not compensated under the collective bargaining agreement. The Seventh Circuit affirmed and the employees appealed to the Supreme Court.

At oral arguments, the employees argued for a restricted meaning of “clothing,” proffering that anything an employee was required to wear that protected him against workplace hazards should not be considered “clothes” and therefore time spent donning and doffing them could not be bargained away. Conversely, the employer argued that “clothing” should include an entire work outfit including protective eyewear, hard hats, glasses, and ear plugs.

The Supreme Court took a middle path and held that “clothes,” for the purposes of Section 203(o), meant “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Justice Scalia, writing for the Court, explained that this was the ordinary meaning from dictionaries in circulation at the time the provision was first added to the FLSA. The Court then defined “changing clothes” to include time employees spend altering their dress in addition to time spent substituting clothes. The Court reasoned that whether an employee exchanges street clothes for work clothes is often a matter of purely personal choice and should not affect whether he or she is compensated for that time. Applying these definitions to the case at hand, the Court held that nine of the twelve protective pieces of gear the employees had raised were “clothing” (such as the jacket, hat, pants, and hood) while the safety glasses, earplugs, and respirator were not. However, because the vast majority of the time these employees spent dressing were devoted to clothing, that time was not compensable pursuant to Section 203(o).

Sandifer provides important guidance to employers on what items constitute “clothing” and whether donning and doffing time is compensable under Section 203(o). Employers should review their applicable donning and doffing policies to ensure compliance with this new Supreme Court guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

"My best business intelligence, in one easy email…"

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Privacy Policy (Updated: October 8, 2015):

hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.